Citation NR: 9608218
Decision Date: 03/14/96 Archive Date: 04/10/96
DOCKET NO. 94-22 816 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to service connection for the veteran’s cause
of death.
2. Entitlement to accrued benefits.
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Associate Counsel
INTRODUCTION
The service department verified that the veteran had missing
status from April 1943 to March 1945, recognized guerrilla
service from March 1945 to June 1945, and regular Philippine
Army service from June 1945 to August 1945. His active duty
dates are therefore April 1943 to August 1945.
This matter comes before the Board of Veterans' Appeals (the
Board) from a November 1993 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO)
which denied service connection for the cause of the
veteran’s death, and denied entitlement to accrued benefits.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant, widow of the veteran, contends that service
connection for the cause of death for her veteran spouse is
warranted. She maintains that he suffered from malaria in
1942 and 1943, and that as a result of complications from
this illness, he developed hypertension which she alleges
caused the acute myocardia infarction leading to the
veteran’s death in June 1991.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting a well-grounded claim for
entitlement to service connection for the veteran’s cause of
death. In addition, it is the decision of the Board that the
claim for accrued benefits must be denied as it lacks legal
merit.
FINDINGS OF FACT
1. The service department has certified that the veteran had
recognized service as a member of the Philippine Commonwealth
Army, including recognized guerrilla service, and regular
Philippine Army service.
2. The veteran died on June [redacted], 1991 at age 70; the
immediate cause of death was malaria, and “LBM” with gastro-
enteritis, with the antecedent cause listed as pulmonary
tuberculosis with severe hypertension due to acute myocardial
infraction, and cardiac failure.
3. At the time of the veteran’s death, he had no service-
connected disabilities.
4. Competent and credible medical evidence linking the
veteran’s death to disability or disabilities linked to
disease or injury of service origins has not been presented.
5. The veteran was not entitled to any periodic monetary
benefits prior to his death, as there were no claims pending
at the time of his death, nor was he in receipt of benefits
at the time of his death.
CONCLUSION OF LAW
1. The veteran had recognized service with the Armed Forces
of the United States so as to be basically eligible for VA
disability compensation benefits. 38 U.S.C.A. §§ 101(2),
101(24), 107 (West 1991); 38 C.F.R. §§ 3.1(d), 3.6, 3.8, 3.9
(1995).
2. The claim for entitlement to service connection for the
cause of the veteran’s death is not well-grounded.
38 U.S.C.A. § 5107 (West 1991).
3. Entitlement to VA disability compensation benefits is not
established for purposes of payment of accrued benefits. 38
U.S.C.A. §§ 1110, 5121 (West 1991); 38 C.F.R. § 3.1000
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
It should be emphasized at the outset that eligibility for
service connected and DIC benefits is governed by statutory
and regulatory law which define an individual's legal status
as a veteran of active military, naval or air service. 38
U.S.C.A. §§ 101(2), 101(24) (West 1991); 38 C.F.R. §§ 3.1,
3.6 (1995). Service in the Philippine Scouts and in the
organized military forces of the Government of the
Commonwealth of the Philippines, including recognized
guerrilla service, is recognized service for purposes of DIC
benefits, as authorized by 38 U.S.C.A. § 107 (West 1991); 38
C.F.R. §§ 3.8, 3.9 (1995).
Under the provisions of 38 C.F.R. §§ 3.8 and 3.9,
certifications by the service department will be accepted as
establishing periods of recognized service as a Philippine
Scout, a member of the Philippine Commonwealth Army serving
with the Armed Forces of the United States, or as a
guerrilla. The United States Court of Veterans Appeals
(Court) has held that a service department determination as
to an individual's service shall be binding on the VA. Duro
v. Derwinski, 2 Vet.App. 530 (1992). The service department
has verified that the veteran served on active duty with the
Philippine Army and had recognized guerrilla service, thereby
basic eligibility on account of the veteran’s military status
for the VA benefits claimed by his widow is established.
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a pre-existing
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also
provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(1995). Service connection may be granted for cardiovascular
disease including hypertension and malaria, when it is
manifested to a degree of 10 percent disabling within one
year following a veteran’s release from active duty.
38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1995).
To establish service connection for the cause of the
veteran’s death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. For
a service-connected disability to be the cause of death, it
must singly, or with some other condition be the immediate or
underlying cause, or be etiologically related. 38 U.S.C.A.
§ 1310 (West 1991); 38 C.F.R. § 3.312 (1995).
The threshold question that must be resolved with regard to
each claim is whether the appellant has presented evidence
that the claim is well grounded; that is, that the claim is
plausible. If she has not, her appeal fails as to that
claim, and VA is under no duty to assist her in any further
development of that claim. 38 U.S.C.A. § 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Case law
provides that, although a claim need not be conclusive to be
well grounded, it must be accompanied by evidence. A
claimant must submit supporting evidence that justifies a
belief by a fair and impartial individual that the claim is
plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992);
Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992).
In addition, where the determinant issue involves a question
of medical diagnosis or medical causation, competent medical
evidence to the effect that the claim is plausible or
possible is required to establish a well-grounded claim.
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991);
if no cognizable evidence is submitted to support a claim,
the claim cannot be well grounded. Id.
The death certificate disclosed that the veteran died at age
70 on June [redacted], 1991 from
malaria, “LBM” with gastro-enteritis, pulmonary tuberculosis,
and from severe hypertension due to acute myocardial
infarction, and cardiac failure. It does not appear that an
autopsy was performed. At the time of the veteran’s death,
he had no service-connected disabilities.
The appellant, the veteran’s widow, filed a claim for DIC
benefits in April 1993. She alleges that during service the
veteran was wounded in the stomach. She reported that he
received treatment for his wounds, at which time he suffered
from colds and fever resulting in malaria in July 1942. She
indicated that complications, apparently resulting from
malaria, included gastro-intestinal problems, and thereafter
PTB. The appellant indicated that hypertension and high
blood pressure which eventually led to the veteran’s death
for cardia failure, developed as a consequence of the
veteran’s various medical conditions, which could be traced
to service.
A clinical record of a private physician dated July 1972 was
submitted for the record. This records showed that the
veteran, then 50 years old, had requested that the medical
statement be provided. The physician indicated that he had
treated the veteran in July 1942 for malaria. It was further
noted that from 1944-1945 complications such as diarrhea,
severe “LBM” and diarrhea with gastroenteritis, were treated.
It was also reported that the veteran complained of severe
coughing, productive of PTB, and later complicated with
severe hypertension with high blood pressure, which caused
his heart illness. The physician reported that the veteran
had shown him a wound on this left side of the stomach, which
was described as the “aftermate of his military illness of
malaria complicated with other illness.” The veteran also
claimed to have been treated by a medical officer during
service.
A joint affidavit dated May 1993 was submitted by two
individuals who asserted that they were comrades of the
veteran in service. The statement attested that the veteran
was wounded in the left side of the stomach for which he was
treated, during which time he suffered from malaria
complicated with gastro-enteritis, severe “LBM” and diarrhea.
It was also stated that later, his illness was further
complicated by severe coughing producing PTB. In addition,
he developed hypertension and high blood pressure, which the
comrades noted, caused his death due to cardiac failure. It
was noted that the veteran had received medical treatment,
but that the treating doctors had died. It was reported that
thereafter, the veteran was treated with herbal medicines,
due to his religious beliefs.
A joint affidavit dated September 1993, submitted by two of
the veteran’s nephews; and a separate joint affidavit dated
September 1993 submitted by two comrades; were received for
the record, wherein essentially the same information provided
in the joint affidavit of May 1993 was reported.
The Board notes that the appellant’s claim for service
connection for the cause of the veteran’s death is primarily
supported by her statements and lay statements from the
veteran’s family and friends. The lay assertions involving
questions of medical causation or diagnosis cannot constitute
evidence to render the claim well grounded because the lay
witnesses are not competent to offer such medical opinions.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
In addition, the private physician’s record, is not
considered sufficient to establish that the appellant’s claim
is well grounded. That record which was dated nearly 30
years following the veteran’s discharge from service appears
to be nothing more than a recitation of the veteran’s
history, as provided by the veteran. There are no clinical
records which corroborate the statements made in that record,
nor was an examination of the veteran undertaken. The
physician’s statement does not even appear provide a medical
opinion as to the etiology of the veteran’s claimed
conditions, it merely recorded the veteran’s account of his
medical conditions as fact. The Board must point out that
this information is blatantly at odds with the information
reported by the veteran in an affidavit completed in March
1946, after completion of the veteran’s recognized service,
which conspicuously fails to reflect that any wounds or
illness were incurred during service. The Board finds that
the March 1946 affidavit is entitled to great probative
weight, while the physician’s remote statement which
contradicts the affidavit and which is not supported by
clinical records, is not credible.
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498 (1995). As no such competent evidence has been present
in this case, the claim must be denied.
The Court also noted that pursuant to 38 U.S.C.A. § 5101(b)
(West 1991), a claim for Dependency and Indemnity
Compensation (DIC) benefits "shall also be considered" a
claim for "accrued benefits." See Isenhart v. Derwinski, 3
Vet.App. 177, 179 (1992); Satchel v. Derwinski, 1 Vet.App.
258, 259-60 (1991). To be entitled to accrued benefits,
under 38 U.S.C.A. § 5121, a claim must be filed within one
year after the veteran's death, and a spouse must show that
the veteran was entitled to periodic monetary benefits on the
basis of evidence in the file at date of death, and due and
unpaid for a period of not more than one year prior to death.
Although the appellant did not file her DIC application until
May 1993, more than one year after the veteran's death, the
appellant may have filed an informal claim for accrued
benefits under 38 C.F.R. § 3.155(a) in July 1991 when the
appellant first sent the RO a letter informing them of the
veteran's death, and requesting that she continue the
application of her late husband.
The veteran applied for entitlement to service connection for
malaria, diarrhea, and hypertension in June 1990. The RO
denied those claims in February 1991. The veteran then died
in June 1991, without having appealed the RO’s decision to
that point. As the RO had determined that service connection
was not warranted for the claimed conditions, no monetary
benefits were due to the veteran prior to death, therefore
entitlement to accrued benefits is not established. As the
veteran was not entitled to periodic monetary benefits at his
death under existing ratings or decisions or based on
evidence in his claims file at the date of his death, no
accrued benefits are payable. In a claim such as this one,
where the law and not the evidence is dispositive of the
issue before the Board, the claim should be denied because of
the absence of legal merit or the lack of entitlement under
the law. See Sabonis v. Brown, 6 Vet.App. 426 (1994).
Accordingly, the appeal is denied as the provisions of
38 U.S.C.A. § 5121 which require the veteran’s spouse to show
that the veteran was entitled to periodic monetary benefits
at the time of his death, were not met.
Under an alternate theory, the Board notes that in order to
initiate an appeal to the Board of a determination on a claim
by an agency of original jurisdiction, a claimant must file a
notice of disagreement with that determination "within one
year from the date that the agency mails notice of the
determination to the claimant." 38 C.F.R. § 20.302 (1995).
A notice of disagreement is "[a] written communication from a
claimant or his or her representative expressing
dissatisfaction or disagreement with an adjudicative
determination by the agency of original jurisdiction and
desire to contest the result. 38 C.F.R. § 20.201 (1995).
The appellant’s July 1991 correspondence could arguably be
construed as a timely notice of disagreement with the rating
determination of February 1991 as it was filed within the one
year appeal period, and accordingly could also therefore be
construed as an informal claim for accrued benefits. Even
were the Board to assume the validity of the NOD and the
informal claim, the appeal would fail. As previously noted,
in order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498 (1995).
As to the claims of entitlement to service connection for
malaria, diarrhea and hypertension, there were no medical
records documenting these conditions during service, or
within the applicable presumptive period. There was no
clinical evidence demonstrating that the veteran had been
treated for these conditions and diagnosed with such in
recent proximity to his death, and there was no competent,
credible medical evidence which provided a nexus between his
claimed disabilities and his period of service. Therefore,
even were the Board to reach the merits of the claim, it
would be denied, as it is not well grounded.
In the recent case of Robinette v. Brown, 8 Vet.App. 69
(1995), the Court held that even prior to the submission of a
well grounded claim triggering the duty to assist under 38
U.S.C.A. § 5107(a) (West 1991), the VA has an obligation
under 38 U.S.C.A. §§ 5103(a), 7722 (West 1991) to advise the
appellant of the evidence necessary to complete her
application for benefits. In this case, the Board has
addressed the elements necessary to establish a well grounded
claim. The appellant may take this discussion as guidance as
to how she may present a well grounded claim in the future.
ORDER
The appellant’s claim for entitlement to service connection
for the cause of the veteran’s death is denied.
Entitlement to accrued benefits is denied.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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